Seybout v. Holder ( 2013 )

12-612
Seybout v. Holder
BIA
A096 253 019
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 3rd day of September, two thousand thirteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 DEBRA ANN LIVINGSTON,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 AMAR OULD SEYBOUT,
14 Petitioner,
15
16 v. 12-612
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Gisela Chavez-Garcia, New York, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Linda S. Wernery,
28 Assistant Director; Walter Bocchini,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Amar Ould Seybout, a native and citizen of
6 Mauritania, seeks review of January 17, 2012, decision of
7 the BIA denying his motion to reopen. In re Amar Ould
8 Seybout, No. A096 253 019 (B.I.A. Jan. 17, 2012). We assume
9 the parties’ familiarity with the underlying facts and
10 procedural history in this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
13 Cir. 2006). To prevail on a claim of ineffective assistance
14 of counsel, a movant must file a motion with the agency that
15 includes: (1) an affidavit setting forth in detail the
16 agreement with former counsel concerning what action would
17 be taken and what counsel did or did not represent in this
18 regard; (2) proof that the alien notified former counsel of
19 the allegations of ineffective assistance and allowed
20 counsel an opportunity to respond; and (3) a statement as to
21 whether the alien filed a complaint with any disciplinary
22 authority regarding counsel’s conduct. See Twum v. INS, 411
23 F.3d 54, 59 (2d Cir. 2005) (citing Matter of Lozada, 19 I.&
2
1 N. Dec. 637, 639 (BIA 1998)). This Court has made clear
2 that “an alien who has failed to comply substantially with
3 the Lozada requirements in [his] motion to reopen before the
4 BIA forfeits [his] ineffective assistance of counsel claim.”
5 Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 47 (2d
6 Cir. 2005). However, “slavish adherence” to Lozada’s
7 requirements is not necessary. Yi Long Yang v. Gonzales,
8 478 F.3d 133, 142 (2d Cir. 2007).
9 In this case, the BIA correctly found that Seybout
10 failed substantially to comply with Lozada in making an
11 ineffective assistance of counsel claim because there is no
12 evidence that Seybout properly informed his previous
13 attorney of all of the allegations against him. See Twum,
14 411 F.3d at 59; Jian Yun Zheng, 409 F.3d at 47. Seybout
15 claims that he mailed his former attorney both a brief
16 letter stating that the attorney had failed to file a brief
17 on his behalf, as well as a copy of an affidavit raising
18 numerous additional allegations. However, there is no
19 evidence in the record to support this conclusion, as the
20 letter sent to Seybout’s former attorney does not reference
21 the affidavit or an enclosure, and nowhere in Seybout’s
22 motion to reopen does he mention that the affidavit was sent
3
1 to former counsel. See Kulhawik v. Holder, 571 F.3d 296,
2 298 (2d Cir. 2009) (unsworn statements of an attorney are
3 not evidence). As the affidavit contained additional
4 allegations of ineffective assistance, the BIA properly
5 found that Seybout failed to provide his former attorney
6 with an opportunity to respond. See Twum, 411 F.3d at 59.
7 Thus, because Seybout failed to demonstrate substantial
8 compliance with Lozada, the BIA did not abuse its discretion
9 in denying Seybout’s motion to reopen. Ali, 448 F.3d at10 517.
11 To the extent that Seybout challenges the agency’s
12 underlying denial of relief, we lack jurisdiction to
13 consider it. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265
14 F.3d 83, 89-90 (2d Cir. 2001). Regardless, Seybout’s asylum
15 and withholding claims were presented to this Court on
16 appeal, and were found to lack an arguable basis in either
17 law or fact.
18 For the foregoing reasons, the petition for review is
19 DENIED.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
4